Unsolicited Advice for Harriet Miers

Paul’s post below started me thinking about Miers’s testimony before the Senate Judiciary Committee and how she should respond to the inevitable questions about whether assurances have been given to conservative constituencies on her view of Roe v. Wade. It occurs to me that there may be a simple approach by which both Miers and President Bush can be extricated from the present difficulty.

Suppose Miers testifies to the following: 1) She believes Roe was wrongly decided, and has expressed that view from time to time in conversation. 2) Her disagreement with Roe is not based on her opposition to abortion, but rather on her opposition to judicial usurpation. The Constitution says nothing about abortion, and the idea that the Court suddenly “discovered” the right after nearly 200 years is ridiculous. 3) She doesn’t know whether she would vote to overturn Roe, because that would depend on issues relating to stare decisis that she hasn’t yet analyzed, and she would not make that kind of decision without hearing the case before her, studying the authorities and the arguments of the parties, and discussing the issues with her colleagues on the Court.

Mightn’t that approach solve a number of problems? Miers would immediately become a heroine to nearly everyone on the right; most members of the public who follow the nomination process only casually would find her acknowledgement that she has indeed discussed Roe refreshing; it would be a good opportunity to confront the Democratic Senators on Roe, not in terms of abortion, but in terms of judicial activism; and it would put the Democrats in a box. Can they allow a nominee to be confirmed who admits that she thinks Roe was wrong? If they do, they’ve opened the floodgates, and they have no basis to object to, say, Judge Michael McConnell, who authored an article titled Roe v. Wade at 25: Still illegitimate.

I think the Democrats would almost have to filibuster Miers if she took the above approach, which, from Bush’s standpoint, is a no-lose proposition. If the filibuster holds, Miers is a heroine, and Bush nominates someone else–Luttig, McConnell, whoever. If she gets confirmed, we will have moved beyond the ridiculous situation we’ve been in for a number of years, in which anyone who wants to be on the Supreme Court can’t say out loud what most of us believe to be true, i.e., that Roe was wrongly decided.

Just a thought.

UPDATE: this could require a little tweaking of the above idea, but the basic concept would still work. Assuming, of course, that Miers isn’t one of the minority of scholars and informed practitioners who actually believe Roe was right.